Second Amendment Wrongs

Opinion

– By Robert Scott –

Those of us old enough to remember a High School course named “Civics” no doubt read, studied, and discussed in class the Second Amendment to the U.S. Constitution. Adopted along with the rest of the Bill of Rights in 1791, it is short enough to quote the whole thing: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Many have been the court cases arguing what, exactly, those 27 words mean. Is the entire meaning wrapped up in that part about “the right … shall not be infringed”? Or does that first part, regarding a Militia (what was then called a State Militia is now called a State National Guard) affect to whom that last part pertains? And what are “Arms”? Does this apply equally to weapons of the types envisioned, touched, and actually carried by those who wrote those words shortly after the Revolutionary War, and to weapons they could not possibly have envisioned: semi-automatic rifles, machine guns, and hand-held anti-aircraft missiles among them?

Maybe it only pertains to guns easily carried and used by one person, to pistols and rifles and their semi- or even fully-automatic variants, and not to weapons capable of shooting down a passenger airplane (they didn’t have those in 1791). Do we as a society accept that the Second Amendment, as written, means that anybody and everybody in “the people” cannot have the government “infringe” their right to purchase, to carry, and (if need be) to use any type of gun?

Well, maybe some of “the people” who are fully qualified to vote should not be fully qualified to own, say, a semi-automatic weapon that can kill everybody in the first two rows of a movie theater in 30 seconds, if they have been under counseling for mental instability. Is that okay under a normal reading of that Second Amendment, or would that member of “the people” have his or her rights “infringed” in a forbidden way?

But that’s why, it might be argued, we have Legislatures (both state and national) and why we have Courts: to decide via a rational reading of such documents as the Constitution’s Second Amendment what they really mean, or really ought to mean, given today’s society. This is no longer 1791, and the weapons of today are entirely different and much more lethal than were weapons back then.

This week, tragically not too different from many other weeks, saw a deranged man kill two reporters on live television. He had been in counseling for troubled actions resulting from having lost his job at that station, but he could still vote – and, it seems, legally purchase the weapons he carried and used. And it saw a college student shot dead presumably by another college student on a public university campus in Georgia, after an argument. I say presumably because, as of this writing, the authorities are not sure who was the shooter; there was no reason to suspect, though, that the weapon was purchased unlawfully. And there was the case in Houston that a man angry with police in general walked up to a uniformed policeman whom he had never met, and shot and killed him. Again, there is no indication that the weapon was not purchased legally.

Here are some ideas and questions we all need to think more about.

According to the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives, there are about 300 million guns in the United States. There are about 325 million people in the United States, including children. How many of them are “the people” whose gun rights cannot legally be “infringed”?

And what connection with that “well regulated Militia” should inform the logic of who is allowed to own a gun, a semi-automatic rifle, or even several of them not in 1791, but in 2015?

—

The views and opinions expressed here are those of the author and do not necessarily reflect those of The Edgefield Advertiser.

Have something to say? Please leave your comments below.

34 Responses to "Second Amendment Wrongs"

Mr. Scott, the answers to your “questions” can be found by logging onto Supremecourt.gov and scholar.google.com. Also, a panel from the University of Chicago recently visited various prisons and interviewed people convicted of violent crimes involving firearms, asking them questions such as “where did you get the firearm?” Reading is fun! I presume you are an art major.

Ed Davis September 7, 2015 at 1:30 am

Blaming an inanimate object for the actions of criminals is foolish. Liberalism is a disease of ignorance.

Ed Davis September 7, 2015 at 1:27 am

Hell, why don’t we just burn the whole Constitution since this fool thinks that it’s outdated. Yea, I took the civics class and evidently he didn’t learn how the Constitution and the amendments are made. That is the only way to change any existing amendment. It is foolish to blame the weapon for the actions of people. We don’t ban cars for killing many times more people than guns. Liberalism is a disease of ignorance.

robtmscott September 7, 2015 at 9:08 pm

I’m not blaming the inanimate objects, but rather the gun owners who thereby find it much easier to commit murder — or, even more frequently, suicide. The question is not how to limit guns so much as how to limit gun ownership.

jim smith September 7, 2015 at 11:13 pm

Re: “suicide”

If someone wants to kill themselves it’s a matter of individual choice where the person can pick the time, place and method and an argument can also be made (contrary to existing laws) that an individual’s life belongs to them exclusively and not you, the State or anyone else.

Mr Scott, et al; it seem to me that if you are to read the Preamble to the Bill of Rights, you as I should understand that the items listed there in are ‘off limits’ to the Congress. The Second Amendment contains a Declaratory as well as a Restrictive clause. Part 1; A well regulated Militia, being necessary to the security of a free State, is declaratory and can not stand alone; Part 2; the right of the people to keep and bear Arms, shall not be infringed.is the restrictive clause and alone is a complete stand alone sentence.
If you took and understood ‘Civics’ and ‘U.S. History’ you would remember that quite often the original Rifles, Pistols, Cannon, Wagons, and Ships were supplied by regular civilian businessmen to the Continental Army and Militia. Today these would be equal to the Personal Firearms, Machine guns Artillery, Tanks, and Warships of today.

fsilber September 7, 2015 at 9:58 am

It has always been considered common sense that the right to keep and bear arms does not apply to those who are to emotionally and intellectually immature to bear the responsibilities of citizenship. For a long time, black people in general were considered to be in this category, but nowadays it’s just children, the insane and convicted felons.

It would be appropriate to link the right to vote with the right to keep and bear arms, because having irresponsible people run the country is just as bad as irresponsible people being armed.

It is obvious that some weapons are too terrible to allow private ownership (think nuclear), but anywhere the line is drawn will seem arbitrary. So as a general principle, I would reserve the most terrible weapons for the military who are forbidden to engage in domestic law enforcement, and to limit those engaged in domestic law enforcement to the use of weapons allowed to the general public. (That is, any arbitrary place we choose to draw the line between legal and illegal weapons should include as legal all the weapons types used by domestic law enforcement.)

(For example, even though police try to stop terrorists with bombs, the police do NOT use bombs. So banning bombs from the general public is reasonable.)

Sp60 September 7, 2015 at 10:02 am

First of all, that ‘college campus’ in GA you mention is a community college in a strip-mall.

And it’s most likely that shooting had nothing to ‘school’ and everything to do with drugs.

robtmscott September 7, 2015 at 8:45 pm

Actually, the shooting (on August 28th) was at Savannah State University. The shooter has still not been found, to the best of my knowledge.

Gordon September 7, 2015 at 10:17 am

Mr. Scott, you should also be aware that semi-automatic and even fully automatic firearms were available during the 1700s. The founders of our nation were well aware of these and that innovation was going to happen in all facets of our lives.

jim smith September 7, 2015 at 10:51 am

Re: “well regulated Militia”

In the 1700’s well regulated meant “to make regular” or “be in good working order” which in today’s military parlance is often referred to as maintaining good order and discipline. See http://constitution.org/cons/wellregu.htm

jim smith September 7, 2015 at 10:51 am

Re: “what was then called a State Militia is now called a State National Guard”

According to current US law, there are 2 types of militias and the National Guard is only one of them – Google 10 USC 311

robtmscott September 7, 2015 at 8:56 pm

Are you saying that the problem of too-widespread gun ownership can be legally stemmed by Congress merely repealing 10USC311? I’m not sure it’s that simple, but if you say so …

jim smith September 7, 2015 at 11:10 pm

Re: “Are you saying that the problem of too-widespread gun ownership can be legally stemmed by Congress merely repealing 10USC311?”

I didn’t say that. I’m not an attorney, but I’m guessing 10USC311 is derived from the Second Amendment, not the other way around. But it would be quite a show to see someone try to repeal it.

jim smith September 7, 2015 at 11:09 am

Re: “This is no longer 1791, and the weapons of today are entirely different and much more lethal than were weapons back then

In the 1700’s when it came to arms that could be carried (pistols, rifles and shotguns) the militia carried the same firearms as the regulars and I can’t find anything that says there was a disparity in capabilities between the regulars and the citizen militia. For instance, I’ve never seen it said that the regulars can carry 30 lead balls but the militia can only carry 10. In addition, some say the militia had better capabilities than the regulars did because many militia members had Kentucky rifles.

jim smith September 7, 2015 at 11:23 am

Re: “weapon that can kill everybody in the first two rows of a movie theater in 30 seconds”

The Aurora theater killer probably chose firearms because they were readily available and met his needs. If they weren’t readily available, he could have easily constructed a home made flame thrower (Google it) and accomplished the task in less than 30 seconds and inflicted more carnage and suffering among a lot more victims past the first 2 rows in addition to a fire that would have hindered rescue attempts. If that had been the case, would you then want restrictions on the purchase of gasoline and plumbing parts?

jim smith September 7, 2015 at 11:27 am

Re: “Here are some ideas and questions we all need to think more about.”

Here is another question to think about. According to the CDC in 2010 there were about 11078 people murdered by firearms in the US which works out to about 31 people per day. These are the “word doctored” figures the news media and anti-gun folks like to publicize because people relate to the magnitude of those numbers and it sounds like a lot of people until you realize this is out of a population of 310 million Americans. In that context, it works out to about 1 person out of every 28,000 people being murdered by a firearm. Dwell on the magnitude of your individual significance next time you are in a stadium with 28,000 people. To me, 1 in 28,000 is an acceptable cost to help ensure the security of a free state and the right to own a firearm that has harmed no one. It is also estimated there are 70 million gun owners in the US which means on any given day 69,999,969 gun owners didn’t kill anyone yet because the news media magnifies these relatively isolated and infrequent events to the level of an epidemic, the anti-gun folks answer is to take the guns away from people who harmed no one. The number of gun violence murders will never be zero. So given the fact that deranged individuals and murderers are an intrinsic part of the human race and we currently live in a free society, what number would ever satisfy you to the point you would say “we don’t need any more restrictions on the private ownership of firearms”?

robtmscott September 7, 2015 at 8:49 pm

I think I would be satisfied if we met the per capita rate of gun murders that is the average of all the countries in Western Europe. Would you be willing to do the same, that is, to restrict gun ownership gradually until we reached that figure?

jim smith September 7, 2015 at 11:04 pm

The problem you have is that in 2010 (for example) there were 725000 violent criminals in state prisons and 15000 in federal prisons (see tables 10 and 11 at http://www.bjs.gov/content/pub/pdf/p11.pdf). This works out to a total of 740000 or about 0.238% of the US population which means that about 1 out of every 420 people in the US that have been caught have no qualms about ignoring whatever laws you pass and killing or injuring someone and the gun is often their weapon of choice. So the bottom line is (1) The human race produces a few bad individuals prone to violence who just refuse to play by whatever rules you promulgate and until you find some way to identify these individuals and the courage to permanently eliminate them from society, innocent people are going to be killed (2) Because of these bad individuals, bad things happen every day to people who through no fault of their own were in the wrong place at the wrong time. Criminals will always have guns if they want them. If worst comes to worst they will be smuggled into the US from Mexico inside a bale of marijuana and sold on the black market. And to answer your question – No. History has demonstrated that freedom is not free and the Second Amendment is not in the Constitution for hunting, personal defense, or to meet some European criterion – it is there to act as a deterrent to a tyrannical government.

robtmscott September 7, 2015 at 9:11 pm

Jim, if a new disease struck our country (think Ebola) and it killed an average of 28 Americans died every day, week after week, what steps would we as a nation take to stem that disease? I think all of us would agree that number to be unacceptably high. Calling “gun violence” a plague is every bit as appropriate.

jim smith September 7, 2015 at 11:05 pm

Re: “what steps would we as a nation take to stem that disease?”

While it may be a cliche, it is true that guns don’t kill people, people kill people. Most of the gun violence in the US involves gangs and/or repeat offenders. So if you want to help “stem the disease”, I suggest you start by advocating for a law to impose a mandatory death sentence on any recidivist with a violent criminal history that uses a firearm to commit a crime regardless of childhood upbringing, economic impoverishment, mental health, age, IQ or ethnicity. If that isn’t enough disease mitigation, start executing those individuals who use a firearm while committing a felony.

Rich September 7, 2015 at 12:18 pm

Yes, we all took Civics, but Mr. Scott failed to grasp the understanding of the language of, and the resulting meaning of the “right of the people”. Freedom is dangerous but no freedom and placing a government in charge is far more dangerous. Tally the body count in the last century up and until the present by disarmed citizens.

This is a dubious argument in my opinion if not in fact. Regardless of what you, me or anyone else thinks about the relevance of the 2nd Amendment as written, we do NOT have courts to decide a rational reading of such documents when it goes beyond the literal interpretation (see Thomas Jefferson’s letter to Judge Spencer Roane). The 2nd Amendment was meant to be interpreted literally in plain English; civics isn’t like an English literature course on symbolism. That’s what it would take to bend the current meaning of the 2nd Amendment to your liking in my opinion. Furthermore, the militia isn’t merely the National Guard, that’s only part of it. You need to familiarize yourself with 10 US Code §311. We’re supposed to have an “organized” militia (the National Guard) and an “unorganized” militia (every male between the ages of 17-45) so that in the event of an insurrection, foreign or domestic, we can elect officers from local militias to the army commanded by the Congress so that a balance of power is maintained in the spirit of federalism. In other words, every male between the ages of 17 and 45 legally residing in this country is a part of the unorganized militia, so it still exists, and that means both clauses of the 2nd Amendment still apply despite your attempts to undermine the militia clause. If people don’t like the literal meaning of the 2nd Amendment, it must be constitutionally amended and not merely bent by the courts to suit someone’s subjective interpretation. And don’t assume what the founders envisioned as far as arms are concerned. Obviously you’re not familiar with the Puckle Gun!!! https://en.wikipedia.org/wiki/Puckle_gun

robtmscott September 7, 2015 at 9:02 pm

My personal library includes two editions of “Constitutional Interpretation,” which runs well over 1000 pages. It is just not true that the 2nd Amendment, nor any other section of the Constitution, can simply be interpreted literally in plain English. If one were to follow that logic, we would still have racially segregated schools in South Carolina.

Are there any other Constitutional Rights that you’d like to see erased because you deem them outdated and no longer necessary? Reading mess like this article makes me wonder about the need for the 1st Amendment but I don’t call for your Rights to be stripped away.

If we rely on the government to tell us what our rights are it’d be up to a swing vote on the Supreme Court. If the people have any rights at all, they at least have the right to Glocks and AR-15s with full capacity magazines – same as our civilian police.

“what was then called a State Militia is now called a State National Guard” – wrong, see Dick Act. Every citizen is a member of this own unorganized militia and other militia as needed.

Wibbins September 7, 2015 at 3:08 pm

Your right to be secure in your papers doesn’t apply to cell phones and computers because the founders couldn’t have imagined modern technology, so sir, I’m from the government and I’m here to search your computers and phones if youre not a criminal then you have nothing to hide.

Sadly, you’re probably the type of collectivist that would be ok with that

The 2nd Amendment as was actually ratified by the STATES only has ONE comma in it and additionally, one other difference. This is what was ratified and is the ACTUAL 2nd Amendment as archived in the Library of Congress: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The proposed amendment was “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

Two differences between what was PROPOSED and what was RATIFIED are the number of commas AND the word “STATE” being capitalized in the proposed amendment and NOT being capitalized in the RATIFIED amendment.

The change in the number of comas creates two balanced clauses where words in one equal the words in the other

The change from “State” to “state” changes the word from a Noun to an Adjective and was not a simple mistake or an oversight, it was, as investigations into ratification discussions held in the individual houses have proven, a purposeful act. It changes completely the subject or thrust of the concept from the individual States needing to be armed, to the necessity of the people (the Militia) to be armed and practiced to continually protect and maintain the condition or “state” of existence known as FREEDOM.

The term “Well Regulated” as it was used when this phrase was written meant well practiced, able to shoot to a point of aim, and “A Militia” as opposed to “The Militia” refers to the people as a whole armed and practiced at their use.

Writing as ANY of our framers would have to answer a simple question: WHY must there be “A Militia”? To defend and protect Freedom and Liberty against ALL the seek to take it!!

samadams1776 September 8, 2015 at 5:56 pm

Where to begin? In 1777 Joseph Belton of Philadelphia offered a cartridge-based (I know!!) 20-shot rifle. The Continental congress asked Belton to provide an estimate for an 8-shot one, but it was too expensive.

The founders understood that destructive power would increase. Surely you don’t believe the First Amendment only applies to printed matter, do you?

More importantly, we don;t get rights from the Bill of Rights (BOR). The Second Amendment (2A) as other enumerated rights as well as unenumerated rights (c.f. the 9th Amendment) and powers (the !0th Amendment) are designed to limit government. In the case of the 2A, the restriction on arms that can be borne is total.

The Preamble to the BOR explicitly states its purpose to restrict government.

Finally, The protected right occurs in the main clause, and is not restricted by the subordinate clause (a prefatory clause as well—a literary technique popular at the time) which offers one reason that they are enumerating that right, and is not the SOLE reason.

The founders intended that the people be armed to prevent tyranny or if necessary, overthrow it, as a duty carefully explained in the Declaration of Independence.

The price of freedom and ensuring the ability to prevent or throw off tyranny is that evil people can kill many people. And if ever we develop hand-held death-ray guns that can kill 10,000 at a time, those weapons ALSO will need to be available to the people to ensure we remain freedom. Government is not worthy of having the monopoly on force and violence

I think it is important for everyone on both sides of the firearms issue to recognize, understand and accept that the Second Amendment to the Constitution does not give or provide to anyone the right to keep and bear arms. Nowhere in the BoR does it PROVIDE or source any rights, it restrict the government and reminds them they do not have the power.

That right predates the Constitution, as it is part and parcel of the human right to protect oneself, a right that exists because you do, a right to protect one’s loved ones and one’s property from predatory actions by others or the tyrannical use of force by a government.

What the Second Amendment does is prohibit the government from taking ANY action that infringes on the right of the individual citizen to keep and bear arms.

And that is a big difference.

RealityBites September 15, 2015 at 8:39 pm

Good questions. They can be answered by looking at original documents, in the historical context that they were written at that time. In order to deduce intent, not only should original documents be examined, but the definitions of words should be clarified through the use of a English Dictionary written within the time frame that the Constitution and Bill of Rights being adopted. This is particularly important since languages evolve, and as they evolve meaning of individual words and phrases also change.

Let’s start with “Militia” what did it mean in 1792….
A good place to start is the 1792 Militia Act (http://www.constitution.org/mil/mil_act_1792.htm) see Section 1, of the Act passed on May 8, 1792. Where it defines how the Militia is to be composed. (In today’s world, this definition would have to be extended to include minorities (non-whites) as well as females)
“That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, ”

“That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, ”

Muskets and Rifles were ‘Arms’ that were deemed suitable for Military Service. In today’s world a Musket or Muzzle loading Rifle would not be suitable for such service since current militaries use Assault Rifles (capable of Select Fire). Therefore a Rifle being suitable for today’s world would be a AR15 that has been modified to be capable of Select Fire (either Semi-Auto, Burst, and Full Auto).

Additionally each person was required to provide their own Ammunition supply. Since Armies have standard ammunition, within the US this would mean that a Citizen would need a suitable supply of 5.56 NATO ammunition that conforms with current military specifications. (so No weapons of mass destruction, no air planes, no Nuclear, Biological, or Chemical Weapons) just weapons that are common to the individual soldier in which they can individually carry and fight with.

Specification of a common caliber was also mentioned ” and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound” So in today’s world that would be 5.56 NATO probably M855 Green Tip Ammunition.

The weapons were privately owned and possessed, so each Militia Member would have their weapons at home with them ready to carry them on a moments notice.

Is the Milita the National Guard? No. Under 10 U.S. Code § 311
(https://www.law.cornell.edu/uscode/text/10/311) the Militia falls within 2 distinct classes: Organized and Unorganized. Organized Militias are supported by the State. Unorganized Militias are just groups of armed US Citizens. They may be privately organized groups that receive no government funding. For example the Michigan Militia would constitute an Unorganized Militia.

The correct context for “well regulated” according to this dictionary is “Orderly, methodical, according with established method”. this clearly means that the militia is to be well organized and trained.

What about the term “arms”…pretty much self explanatory see the first part of this reply. However in perusing the above dictionary: it defines arms as: “Weapons of Offence or Weapons of Defence such as Armor” Thus the Second Amendment applies not only to offensive weapons such as Firearms, Swords, Knives, but also defensive weapons such as Tasers, Mace, Pepper Spray, and Body Armor.

Historical context: at the time the Constitution and Bill of Rights were adopted there was no “National Guard”, there were no Police Departments. People were responsible to protect themselves by carrying arms (fire arms, swords, knives, etc) protect themselves from criminals, indians and foreign military forces. State Governments were responsible for creating, funding, arming and training Organized State Militias. Individuals were responsible for having a weapon suitable for Military duty, and ammunition that meets military specifications, also individuals were encouraged to form Unorganized Militia Units, muster and train. During times of War these Militia Units were called up and placed under Federal Control (usually the Army, which was very small and top heavy with officers)